Here are the essentials to consider if you want to fight a judicial foreclosure.
In a judicial foreclosure, the foreclosing party must bring a lawsuit to start the foreclosure. You will be notified of the foreclosure lawsuit when papers called a "summons and complaint" are served (delivered) to you. The paperwork will advise you of the lawsuit and give you a deadline to respond if you decide to contest the action.
Should I Respond to a Foreclosure Lawsuit?
Whether you respond to a foreclosure lawsuit is up to you. Either way, the mortgage lender must prove that the foreclosure is legal. Although, if you don't respond to the suit, the chances are excellent that the foreclosure will go through.
The proof the lender uses typically consists of a thick bundle of documents purportedly containing various papers you signed when obtaining or refinancing your mortgage, like a mortgage (or deed of trust) and a promissory note. The lender will also likely include copies of notices, signed agreements, accountings of payments, and written statements under oath (declarations) or statements sworn before a notary public (affidavits) from the lender or servicer's employees.
Generally, if you don't respond by the deadline, the court will accept the papers as evidence supporting a foreclosure judgment and order for sale. If you respond, you can tell a judge why you think the papers are wrong and that foreclosure is not warranted.
How Do I Respond to a Foreclosure Lawsuit?
To contest the foreclosure, you must file an "answer" in most places. In the answer, you state your factual and legal arguments for opposing the foreclosure.
How to Prove Your Case in a Foreclosure Lawsuit
If you have evidence to support your position, you can file your own sworn statements. For example, if the foreclosing party claims that you missed five payments, but you can prove—typically with canceled checks—that you missed only one, you would submit a statement under oath and attach your canceled checks.
What Happens After You File an Answer to the Foreclosure Lawsuit
After you file your answer with the court, the foreclosing party may file a motion for summary judgment, which you must respond to, and the court will hold a hearing on the matter. The court will grant judgment in favor of the foreclosing party if no dispute exists regarding the critical facts of the case.
But if the court denies summary judgment, the case will proceed toward a trial.
Discovery During a Foreclosure Case
Before the trial, discovery will take place. In the discovery process, you and the foreclosing party ask each other for facts, documents, and other information before the trial. Each side may ask the other to provide certain information that might help prove or disprove the right to foreclose through a demand for the production of documents, interrogatories, and depositions.
Trial
At the trial, the foreclosing party must prove it has the right to foreclose to prevail. For you to win the case, you must prove that the foreclosing party shouldn't be permitted to foreclose. You will both present your cases, sometimes through witnesses who can be questioned by the judge and cross-examined by the other side.
At the end of the trial, the judge will either:
- order the foreclosure to proceed (and perhaps set the sale date), or
- dismiss the case, sending the foreclosing party back to the drawing board.
Talk to an Attorney
You'll likely need to hire an attorney to challenge a foreclosure in court successfully. So, to fight a judicial foreclosure, consider talking to a foreclosure attorney who can advise you about what to do in your particular circumstances.
Legal Information & Books from Nolo
